Conflicts-Law Constitutionalism: Ambitions and Problems

"Conflicts-law constitutionalism" seeks to defend the rule of law and the idea of law-mediated legitimacy in the postnational constellation. The idea of its "three dimensional" differentiation responds to general developments of legal systems, namely the emergence of legal frameworks for regulatory politics and for governance arrangements. These developments have been observed within constitutional democracies and intensively discussed in the 1970s by legal theorists and sociologists, thereafter in the European Union by lawyers and political scientists and finally redetected in the "geology" of international law. The "second dimension" conflicts law reflects the need for transnational regulatory politics and provides frameworks for the cooperation of national and supranational administrative bodies. Conflicts law of the "third dimension" is concerned with the establishment of transnational co-operative arrangements which build upon the participation of nongovernmental actors and epistemic communities. In all of these three dimensions conflicts-law constitutionalism strives for a compensation of normative and regulatory nation state failures, namely the inability of constitutional democracies to include all those affected by their policies into democratic decision-making processes, be it their eroding capacities for an autonomous problem-solving. In all of these respects the approach preserves closer links with the state law and its potential to organise democratic processes and to protect democratic institutions than the advocates of societal constitutionalism. This position is particularly difficult to defend in the "third dimension" of the conflicts-law approach in view of the self-regulatory activities and capabilities in functionally differentiated societies. The paper will refer at this point to Karl Polanyi's economic sociology and his analysis of the dynamics of capitalism in the late 19th century as a double movement of the politically organised disembedding of market mechanisms on the one hand and spontaneous societal moves towards re-domestications which were supported by social policies. In such perspectives markets can be understood "instituted processes," "as polities" and links between the politicisation of the economy and the political system are preserved.